A senior Gaborone lawyer Dr Baatlhodi Molatlhegi and two other respondents sighed with relief March 29 when Justice Bengbame Sechele of the Gaborone High Court absolved them from alleged criminal conduct emanating from a plot transfer in Block 8 Gaborone to a new owner without the consent of the previous owner.
The case, which has been dragging before the courts since August 2013 was finally settled when Justice Sechele pronounced his ruling upholding Molatlhegi’ and the other two’s submission of absolution from the instance at the close of the marathon case.
The other two are Ralph Maganu and Emy Kgaswane with other defendants in the matter being Bank of Botswana, Attorney General, Stanbic Bank of Botswana Limited, Lands Department as well Gaborone City Council.
The genesis of the case was that Kaone Bushie Molapo approached the High Court seeking the setting aside of the transfer of Lot 34124 Block 8, Gaborone from him to Maganu as illegal and or unlawful.
Molapo also sought the court to direct the Attorney General to transfer the plot back to him and that a deputy sheriff of the court sign all necessary documentation for the restoration of the plot to his possession.
The plaintiff further wanted the court to order Maganu who had developed a double storey building on the plot in question to its original condition with the Director of Public Prosecutions implored to investigate the circumstances of the transfer to Maganu with a view to determine whether or not there was criminality and if such is found to exist, the identity of the perpetrators thereof. Lastly the plaintiff wanted the defendants to bear the costs of the application.
After the parties exchanged papers and following several interlocutory motions in the matter that culminated in the joinder of Stanbic Bank of Botswana, Kgaswane, Lands Department and Gaborone City Council, the presiding judge on October 30, 2015 directed that the matter be referred to trial.
Molapo submitted that he was offered Plot 34124 Block 8, Gaborone by the Attorney General, an offer which he accepted. Molapo alleged that the purchase price of the plot was paid for by Maganu whom he had not authorized to make payment on his behalf and that the plot was subsequently transferred to Maganu through Molatlhegi’s law firm.
The plaintiff also argued that the transfer was done without his involvement and therefore illegal and or unlawful adding that Maganu effected developments on his property and is now in occupation thereof.
The plaintiff also called the evidence of officers from Lands Department and Deeds Registry whose evidence established that the registration of the deed was on the face of it, regular.
Advocate Sydney Pilane instructed by attorney Kgalelo Monthe representing Molatlhegi submitted that Molapo had failed to lead cogent evidence to dislodge the presumption of regularity created by section 8 of the Deeds Registry Act.
Pilane further submitted that Molapo’s case was discredited in cross-examination such that no reasonable court, properly directed would call the defendants to answer it and thus rendering the case a proper case for absolution.
Advocate Oqurombi Sunday representing Molapo submitted that a prima facie case has been made out for the relief sought and the evidential burden on Molapo determined not merely by the final pre-trial order but also by the pleadings filed which were admitted by the defendants.
In his ruling of absolution, Justice Sechele held that it is common cause that the title deed in the matter is under the names of Maganu pursuant to a deed of transfer allegedly passed by Molapo and which deed of transfer Molapo maintained was procured fraudulently.
The presiding judge said there is before him a deed of transfer that is on the face of it valid. Plaintiff’s witnesses have vouched for its validity, hence its registration at the Deeds office.
Magdeline Motlhagodi testified to having dealt with Molapo in the course of preparing the title deed and that Molapo was very much alive to the involvement of Dr Molatlhegi’s law firm in the transaction.
Justice Sechele further held that Molapo has himself testified to having been aware of the developments taking place on Plot 34124 Block 8 from as far back as 2006 but neither confronted the Dr Molatlhegi’s law firm that was alleged to have handled the transfer nor the person who commissioned the construction on the plot.
“He only sought to mount this challenge on or about May 2012, after a period of some six (6) years or so years”, pronounced Justice Sechele in his 16 page judgement.
The presiding judge observed that the plot was allocated to Molapo in 2000 and was to have been developed within four years from date of allocation. A purchase price of P20 096-00 was to be paid and 10 percent thereof (P2 096-00) was payable upfront with the balance of P18 086-40 being spread over a period of four years at the purchaser’s discretion and with interest.
In 2006, the plot was listed for repossession as Molapo was more than four years delinquent with his payments. Although Molapo alluded to an extension having been granted when he went to school, the court found no such evidence.
“Payment was only effected in 2006 and such payment was according to the Plaintiff, made by a person or persons unknown to him. It is however part of the evidence led on his behalf that a title deed was generated pursuant to such payment and that he was fully aware of its existence and further that the law firm Molatlhegi and Associates whose business card was found in the file had collected it” observed the judge.
While Molapo testified that he had erected a two and half house on the property prior to occupation by Maganu, there was no evidence that such structure was erected in accordance with all the relevant laws, regulations and by laws in force at the time.
Justice Sechele found that there is incontrovertible evidence that the property in question was developed to the satisfaction of the Attorney General when it was transferred to Maganu.
The judge also held that Molapo’s inaction and delay to move the court for the cancellation of the title deed on the grounds that he had gone to school and had insufficient time to attend to the issues “is not good enough” because the remedy he seeks “is just too drastic and needs stronger hinges to sustain it”.
“The Plaintiff has struck me as a person who is very much aware of his rights and I take the view that there is more to his inaction than meets the eye”, said Justice Sechele.
The judge concluded that Molapo was complicit in the procurement of the title deed and the subsequent transfer of the property to Maganu adding that “his conduct throughout the entire debacle speaks volumes”.
Justice Sechele upheld the defendants’ submission of absolution from the instance with costs and which costs includes the costs of two counsel.
